A Look At The History Of The Seal Of Confession

A LOOK AT THE HISTORY OP
THE SEAL OF COS3FESSION

INTRODUCTION
In the course of our nation's history the question of privileged
communication or the need for confidentiality in the husband-wife,
lawyer-client, doctor-patient relationship has been strongly established
in precedent and law. Not so strongly founded however, has been the
journalist's demand for a shield law which would protect reporters and
their sources from contempt charges in law courts. In recent months
reporters have gone to jail for refusing to identify sources of inform-
ation or for refusing to testify before grand juries.1 Newsmen contend
that they cannot get important information to the public unless they
promise anonymity to sources who fear retaliation. They further argue
that the First Amendment guarantees them the right of privileged communi-
cation status. As A.M. Rosenthal, managing editor of the New York Times
has written:

Freedom of the press depends on a reasonable
degree of access to information and on con-
fidentiality of news sources, and they go
together. Without them you have only freedom
to print speeches and handouts and that's not a
freedom worth talking about.2

On the other side of the controversy, government officials argue that

failure to disclose sources of information leads to the disregard of the

laws of the land concerning libel and national security. Governor William

Cahill of New Jersey recently vetoed a legislative measure that would have

given reporters in New Jersey the legal privilege to refuse divulging news

1New York Times. December 18, 1972, p. 2.

2A.M. Rosenthal, "Save the First Amendment," New York Times Magazine,
February 11, 1973, p. 49.

sources to grand juries, investigative or legislative committees. The

bill had been widely heralded as the strongest news source protection

measure in the country. In his veto message the New Jersey governor

states:

While freedom of the press is one of our most
important constitutional principles, there are
other very well accepted rights of our citizens
which clearly come into conflict with this
principle ... It is no more acceptable to have
the press all powerful than it is to have the
government all powerful. 3

On the federal level. Senator Sam Erwin (D-N8) , Chairman of the
Subcommittee on Constitutional rights, is spearheading a drive to es-
tablish a uniform press shield law for all newsmen in our country. He
has written:

The passage of some type of statutory privilege
for newsmen is compelling. Without the protection
of anonymity, inside sources may simply dry up.
We will all be the losers, and nobody - culprit
or reporter will go to jail.

These efforts to legislate a newsman's shield may pass Congress this
time but similar efforts in the past have failed. In 1930 and again in 1936
efforts to establish legal immunity for newsmen have been defeated in Congress. -*

While the press is currently bearing the brunt of the battle to establish
firmly a strong constitutional defense of privileged communication for them-
selves, the question is important for all professions. There are certain
common factors in the claims for legal protection in all confidential relation-
ships. Surprisingly, privileged communication for the clergy is not as well

3New York Times, March 20, 1973, p. 43.

*Hew York Times, February 14, 1973, p. 41.

^Robert J. White, Confession and the Law (Washington: Catholic University
Press, 1938) , p. 2.

protected legally as many clergymen may think. Recent studies show
that some States do not extend legal protection to the clergy in cases of
privileged communication. While 44 States and the District of Columbia have
statues recognizing the privileged nature of communications to the clergy ,
the wording of these laws leaves the clergyman vulnerable in many situations.
In six States (Alabama, Connecticut , Mississippi, New Hampshire, Texas and
West Virginia) there is no statue at all to protect the clergyman in cases
involving privileged communication.

Why the clergy do not have universal protection is an involved question.
Some authors trace the problem to English Common Law which is the foundation
of our own system of law. It is the purpose of this paper to look briefly
at the historical development of the Seal of Confession in the Roman
Catholic Christian tradition for it is from this that I believe the whole
concept of clerical privilege communication developed. By an awareness of
the history of the Seal, I hope my readers will develop an interest in and
a vigilance in protecting this vital tool for the work of American clergy-
men in or out of uniform.

Fred L. Kuhlmann, "Communications to Clergymen: When Are They

Privileged?", The Journal of Pastoral Care, XXIV (March 1970) pp. 1-2.

John R. Roos, The Seal of Confession, (Washington: Catholic University

Press, 1960), p. 112.

Part One - The First Christian Centuries

The Seal of Confession, as practiced by the Roman Catholic Church has

been legislated by the Code of Canon Law, promulgated in 1917. The two

major canons governing this important aspect of the Sacrament of Penance are

Canons 889 and 890:

The sacramental seal is inviolable; therefore the
confessor shall scrupulously take care that he may
not by word or sign or in any way or for any reason
betray the sinner. (889)

It is entirely forbidden to confessors to use, to
the detriment of the penitent, knowledge acquired
from confession (890) ■*■

While these Canons give the modern position of the Catholic Church on

the matter of the Seal of the Confession, the historical development of this

position is very interesting. Since it is an integral part of the Sacrament

of Penance we must begin our survey with the early Church's exercise of the

command of Jesus as spelled out in St. Matthew's Gospel: "I tell you solemnly,

whatever you bind on earth shall be considered bound in heaven; whatever you

2
loose on earth shall be loosed in heaven."

From its inception, the Christian community has seen that Jesus'

fundamental mission on earth was salvation from sin and its effects in man's

life. The very name Jesus, "YEHOSHUA" means "Yaheveh saves". The angel's

words to Joseph: "You must name him Jesus, because he is the one who is to

save his people from their sins" is another New Testament indication of the

forgiving nature of Jesus' mission among men. After the Resurrection and

John A. Abbo and Jerome D. Hannon, The Sacred Canons (St. Louis: Herder
Book Company, 1952) Vol I, p. 18.

2

Matt. 18:18 (Jerusalem Bible)

Cf. footnote on Matt. 2:21, The New Testament of the Jerusalem Bible,
Readers Edition. (Garden City: Doubleday and Company, 1969) p. 15.

4Matt. 2:21 (Jerusalem Bible)

Pentecost events, St. Paul and the other Apostles preached "Death to sin
and rebirth to new life."

For many early Christians, the overwhelming feeling was the Christian
conversion meant that a Christian just does not sin seriously after con-
version. Yet, the evidence of the First Letter to the Corinthians shows

that the Apostles were well aware of the possibility of serious sin after

6
conversion.

Early attempts at expressing the healing power of Penance focused on
the Eucharist and Kiss of Peace as methods of healing minor transgressions.
Serious sin was dealt with by the threat and actual practice of excommunic-
ation from the Christian community. To indicate sincere sorrow for the
transgressions, a system of public penances was gradually developed. The

writings of the early Church Fathers especially Clement of Rome, Origin and

p
Irenaeus attest to this development.

An important, early document concerning the penitential practice of the

Church is the Shepherd of Hennas, written about 120 A.D. in the form of an

Apocalypse or Revelation. This writing depicts a series of visions and

commandments which attempt to soften the position of rigorists who wished

to deny penance to those baptized Christians who sin after Baptism. While

admitting that the ideal Christian is one who needs no further act of penance

after Baptism, Hennas holds out one opportunity for penance. His reasoning

for limiting it to one opportunity is more psychological than doctrinal but

5
Romans, 6: 1-4.

1 Cor. 5. St. Paul is appalled by the tolerance of an unrepentant,
incestuous man within the Christian community.

7
William G. Storey, The Sacrament of Penance - Historical Background,

(Notre Dame, Indiana: Ave Maria Press, 1972) Tape lecture MCL 703.

Bertrand Kurtscheid, O.F.H. , A History of the Seal of Confession, (St.
Louis: Herder Book Company, 1927) pp. 8-10.

he does establish the principle of a single opportunity for forgiveness after

Baptism:

For some teachers I have heard that there is no other penance except
the one when we go down into the water and received remission of
our former sins.... Surely it were right that he who has received re-
mission of his sins should sin no more. But since you demand ex-
actness in your questioning, I will make this point clear to you as
well.... the Lord who knows the heart and has knowledge of all things
in advance, knew the weakness of men and the manifold wiles of the
devil. Therefore did the Lord, who is rich in mercy have mercy on
the work of his hands and establish even this penance. But I tell
you, after that great and holy calling (of baptism) , if anyone is
tempted by the devil and sins, he has but one penance. For if anyone
should sin and do penance frequently, to such a man his penance will

Q

be of no avail; for with difficulty he will live.

Hennas reflected the pastoral difficulty, sensed acutely by the early
Christians, of seeming to encourage sin by stressing the possibility of
pardon. This pastoral difficulty, along with the genuine fervor of the first
Christians, tends to explain much of the harsh legislation of the early
Church concerning the exercise of the Sacrament of Penance.

To sum up, during the first 300 years of Christianity, the Christian
sacrament of Penance was exercised through public confession with rigorous
public penitential practices. There was a single opportunity for penance
after Baptism in the case of serious sins.

By the end of the fourth century, a major change in the practice of
public penance took place in the eastern church. The office of Priest-

Paul F. Palmer, S.J. , ed. , Sacraments and Forgiveness, Sources of
Christian Theology, Vol. II (Westminster, Maryland: The Newman Press, 1961)

p. 14.

6

Penitentiary which had been established to oversee the practice of public

penance, was disappearing. In 391 A.D. it was abolished completely in the

east and not much later in the west.

The basic reason for the disappearance of the office was the growing

practice of private confession. With this practice, the development of

the Seal of Confession really begins. A contemporary of St. Ambrose (d. 397) ,

St. Paulinus, described the great Bishop of Milan's confessional practice:

the circumstances of the crimes which they confessed to him
he never divulged to any but the Lord alone, with whom he
made intercession. Thus did he leave a good example to
priests after him, that they should be intercessors with
God rather than accusers of men.

Another great Saint of the late fourth century, Basic (d. 379) is
probably the first writer to mention an ecclestiasical ordinance for safe-
guarding the secrets of the confessional. As exposed by one scholar:

The rudiments of the Seal are recognizable in the writings
of St. Basil which show an endeavor on the part of the
Church to remove everything that might deter the faith-
ful from confessing their sins. 2

In conclusion then, the first centuries of the Church's history were

marked by public penance, severe penitential discipline and only slow-growth

of private confession. As the Catholic Encyclopedia states:

A number of writers expressed the principle that the
sins confessed by a penitent be spoken of to no one
save to God alone. This principle was accepted gradually
as a guiding rule of conduct both in the East and in the
West.13

10Ibid., p. 79.
^Ibid., p. 91.

12Kurtscheid, A History of the Seal of Confession, p. 47.

13J.L. McCarthy, "Seal of Confession," Hew Catholic Encyclopedia, 1967,
IV, p. 133.

Part Two - The Fifth Thru 12th Centuries
During the long period in the Church's history which we usually refer
to as the "Middle Ages" (from the fall of the Roman Empire in 476 A.D. to
the beginning of the Reformation in 1520), the Church's penitential dis-
cipline was a principal force in the missionary effort to the barbarian
nations of Europe. While the practice of public penance retained some
force on the continent of Europe, a separate and eventually very influential
form was developing in Ireland and England. The Church in these countries
was established by the efforts of monk-missionaries and the influence of
monacticism was the predominant feature of ecclesiastical life. The Irish
Church of the early Middle Ages "had received a monastic organization.

Ireland never belonged to the Roman Empire and possessed
no cities. The first centers of culture were monasteries....
The Church was monastic. The bishops were Abbots or they
were subject to the Abbot of the monastery.1

This monastic influence on the development of penitential practice in
the Church is most important for the growth of the Seal of Confession. The
monks were seeking a higher degree of spiritual perfection and associated this
drive with the exercise of the sacrament of penance. Spiritual direction was
tailored to individual efforts at growth in holiness and as a result private
penance became the norm.

In 668 A.D., Pope Vital ian chose as Archbishop of Canterbury an Eastern
monk by the name of Theodore. Since the practice of private penance had begun
in the East, Theodore found the Celtic practice to be in harmony with his own
views. The penitential books of this period of the English Church reflect
the acceptance of private penance and confidential communication with the con-
fessor.

^Ludwig Hertling, S.J. , A History of the Catholic Church, trans, by
Anselra Biggs, O.S.B. (Westminster, Maryland: The Newman Press, 1957) pp. 122-223.

2
Palmer, Sacraments and Forgiveness, p. 147.

8

The major missionary effort to the Germanic nations was made by Irish
monks. In carrying the faith to the Germans, the monks also had great in-
fluence on ecclesiastical practices in the Prankish territories. For some
centuries (7th thru 9th) the contrast between the Roman (public penance
emphasized) and the Celtic practice caused some difficulties. In the time
of Charlemagne, the conflicting practices were examined. While public
penance was maintained there was a vigorous growth of private penance.
In accord with this growth, a decretal of Charlemagne in 813 had established
clearly that "the Seal was looked upon as a strict obligation for the
confessor."

While the importance of the secrecy of confession grew during these
early Middle Ages, it is only at the close of the ninth century that we find
the first direct legislation of the Western Church in the Poenitentials Summorum

Pontificum. A double punishment is inflicted on the priest for violation

4
of the seal: removal from office and life long exile.

Prom the ninth century on, there is a steady progression in the accept-
ance of the practice of the Seal of Confession. Over and over individual
synods. Bishops and Canon lawyers stress the need for safeguarding con-
fessional secrecy. Finally in the year 1215, Pope Innocent III convened
the Fourth Lateran Council and the following definitive statement was
decreed for the whole church:

Moreover, let him (the priest) take absolute care not to
betray the sinner either by word or sign or in any way
whatsoever: but if he shall need more prudent advice,
let him cautiously seek it without revealing the person
in any way.5

Knrtsheid, A History of the Seal, p. 74.
4Ibid, p. 87.
Palmer, Sacraments and Forgiveness, p. 198.

Part III - The Late Middle Ages and Reformation
The law of the Seal of Confession enacted by the Fourth Lateran Council
in 1215 was renewed during succeeding centuries by numerous local diocesan
synods and its observance became universal. However, this did not close the
door on all controversary concerning the Seal.

While several difficult situations were envisioned and discussed by
ecclesiastical writers, the chief problem of canonists was with confessions
in which the intent to commit sin was discussed with the priest. In the
view of some canonists, the lack of sorrow for sin and intent to commit the
sin which invalidated the confession, freed the confessor from the obligation
of the Seal. With others (and the current practice of the Church) , the fact
that a person attempts a confession whether valid or complete, places the
priest under the Seal.

One of the most important developments in this period was the growth of
the Gallican teaching on the obligation of the Seal. An ordinance of King
Louis XI on 22 December 1477 commanded all citizens, under pain of death, to
report any plot against the king. A test case of this ordinance as applied
to the confessor occurred when the Bishop of AUTUN was subpoenaed as a
witness concerning an early 16th century plot to overthrow King Francis I.
Since the Bishop stated he knew of the plot only from the confessions of one
of the nobles involved, he asked to be excused from testifying. After recourse
was made to several French theologians, the court decided that since the noble
did not receive absolution (he was not properly disposed) and since he did not
intend to really confess his sins, the Bishop was free to tell of the facts
of the plot.1

Kurtseheid, A History of the Seal, p. 153.

10

Many theologians throughout Europe disagreed with this opinion, es-
pecially those from Jesuit schools of theology. While they admitted the
duty of the confessor to denounce murderous intent without naming the
plotters, the Jesuits rejected that the threat on the life of the king de-
manded that the guilty party be denounced.

A similar situation in Reformation England has had profound influence
on the present attitude of American law concerning the Seal. On 28 March
1606, the superior of the Jesuits in England went on trial for treason.
Father Henry Garnet, S.J., had been told by one of the conspirators in the
Gunpowder Plot of the details of the plot to blow up Parliament. Father
Garnet tried to dissuade the conspirator but was unsuccessful. He maintained
at his trial that he could not reveal the plot to the authorities because

he was bound by the Seal. After a trial filled with statements based on

2
religious prejudice against "Papist and Jesuitical machinations", Father

Garnet was found guilty of treason. He went to his execution asserting his

innocence of any part in the plot and that all matters entrusted to him in

confession "were protected by a divine seal from publication."

More will be mentioned in the next part of this paper concerning the
attitude of English Common Law and its influence on the privilege of con-
fidentiality for the clergy. However, the case of Father Garnet influenced
this development tremendously and also is an important case in the history
of the Seal of Confession.

Reformation leaders on the continent had varied opinions about clerical
privileged communication. While Wycliff was opposed to it on the basis of

2White, Confession and the Law, pp. 26-27.
3Ibid., p. 17.

11

fraternal connection, Martin Luth*: said in answer to a question concerning

whether a clergyman should divulge a confession in court:

She (it was a case of a woman who had killed a child) did
not confess to me but to the Lord Jesus Christ; since
Christ keeps the secret I must also keep it and unhesitat-
ingly say: I did not hear it; Christ has heard it so He
may say it.

As a result of the attitude of Luther, even areas of Protestant heritage in

Europe have been generally respectful of the obligation of the clergy

in the context of the Seal and privileged communication.

TKurtscheid, A History of the Seal, p. 315.
Roos, The Seal of Confession, p. 112.

12

Part IV - The Historical Background of the Seal

in American Civil Lav

In the introduction to this paper it was mentioned that clergymen in

the United States, while protected to some degree by civil law in the matter

of privileged communication, are not completely immune to problems with

civilian authorities. This fact is probably based on the strong tendency of

English common law to refuse to protect the secrecy of the Confessional

communication to a clergyman.

Even a cursory examination of the many American legal pre-
cedents in the form of judicial opinions which are hostile
to the existence of the privilege of "priest and penitent,"
openly base their adverse conclusions upon the long line of
similar precedents in English common law.

The precendents of English law were strongly influenced by the anti-
Catholic and anti-Jesuit prejudices of the English after the Reformation.
Because of this influence, Protestant Anglican and Catholic scholars and
lawyers have engaged from time to time in controversary over the question.
Perhaps the best statement of the case comes from an article by Vincent
Allred:

Regarding confidences between the clergyman and penitent,
there seems to be no unanimity of opinions as to the ex-
tent to which the communications were privileged at English
common law... In England, at common law, the question ever
remained in a nebulous state; it being decided at one time
that such communications were privileged, at another they
were not so, and again a middle ground being adopted,
it was said that, though they were acceptable as evidence
if purely voluntary, yet they were highly improper if
coercion were employed... the question never received
precise adjudication in England.

p. 23

*White, Confession and the Law, p. 11.

Vincent C. Allred, "THe Confessor in Court," The Jurist, XIII (1952) ,

13

The sane nebulousness has affected American law. However, there have
been some historical cases which have influenced the question* The first
major case was in 1813 and involved Father Anthony Kohlman, Pastor of St.
Peter's Catholic Church in New York City. In that year. Father Kohlman
returned stolen property to its rightful owner. When he refused to
divulge to the police the names of the persons who had given him the
property because its return had been brought about through sacramental
confession, Fr. Kohlman was jailed for contempt. After a lengthy and well
publicized trial, the unanimous opinion of the court was given by the
Honorable De Witt Clinton, Mayor of New York, that the priest was not com-
pelled to answer. This case has been the precedent from which New York
developed a pioneer statute protecting the cleric in such cases.

Unfortunately in the year 1817 another New York court held that the

ruling in the Kohlman case applied only to Roman Catholic priests because

4
Protestant churches did not make confession a sacrament.

Actually then, clerical exemption from prosecution in the United

States has been dealt with only by individual States. For the Catholic

priest, an argument has been advanced whereby the First Amendment may be

cited as the source of protection. Fr. Allred states:

For a Catholic priest the secrecy of the secrecy of
the confessional is prescribed by Canon Law. The
Sacrament of Penance involves a rite of the Church.
Any effort to compel its violation would appear to
be a prohibition against the free exercise of religion
guaranteed in the First Amendment. Since the Supreme

White, Confession and the Law, pp. 26-27.
4Kuhlman, Communications to Clergymen, p. 31.

14

Court of the United States has held the First Amendment
equally applicable to the States, it would appear that
any effort to make a priest violate the Seal of Confession
might be a violation of constitutional rights whether in
a Federal or a State court.

5Allred, The Confessor in Court, p. 27

15

Conclusion

The purpose of this paper has been to highlight historical points which
have influenced the development of the Seal of Confession and its influence
on clerical privileged communication. We have seen that in the early
Christian centuries the emphasis was on public penitential practices and
the single penance concept of Hermas the Shepherd. With the gradual de-
velopment of private confession in the Eastern Church and in the Celtic
Church the importance of the Seal began to grow. The Fourth Late ran Council
in 1215 established the universal law of the Seal.

The decree of the Council did not cut off all problems concerning the
Seal. Theologians and canonists of France exempted plots against the King
or the State from the Seal. This Gallican theory also influenced the case
of Father Garnet in England. Because of prejudice against the Catholic
practice and Jesuits , English common law has had ambivalent expressions
concerning clerical privileged communication. Our American system in turn
has also been influenced by English precedents or lack of them.

Fortunately, most American States have £.iacted statutes that give the
clergy the same protection as lawyers, doctors or spouses in questions of
privileged communication. But these statues - many based on the New York
precedent protecting only Roman Catholics - are not strong enough.

Therefore, just as newsmen are aware of and fighting for the status
of privileged communication before the bar of American justice, so too
should American clergymen be aware of the need to protect and extend their
privilege. It is something we expect to find in our land where religious
freedom is guaranteed, but we may not find it when we especially need the
protection of privileged communication.

16

Bibliography

Abbo, John A., and Hannon, Jerome D. The Sacred Canons. Vol I St. Louis:
Herder Book Company, 1952.

Hertling, Ludwig, S.J., A History of the Catholic Church. Translated by
Anselem Biggs, O.S.B. Westminster, Maryland: The Newman Press, 1957.

Jones, Alexander, ed. The New Testament of the Jerusalem Bible. Garden
City: Ooubleday and Company, 1969.

Kuhlman, Fred L. "Communications to Clergymen: When Are They Privileged?"
The Journal of Pastoral Care, XXIV (March 1970) .

Kurtscheid, Bertrand, O.F.M. A History of the Seal of Confession. Trans-
lated by Rev. F.A. Marks. St. Louis: Herder Book Company, 1927.

McCarthy, J.L. "Seal of Confession", New Catholic Encyclopedia, Vol. IV.

Palmer, Paul F., S.J., ed.. Sacraments and Forgiveness, Vol II: Sources of
Christian Theology. Westminster, Maryland: The Newman Press, 1961.

Poschmann, Bernhard, Penance and the Anointing of the Sick. Translated by
Francis Courtney, S.J. London: Burns and Oates, 1964.

Roos, John R. , The Seal of Confession. Washington, D.C. : The Catholic
University of America Press, 1960.

Storey, William G. , The Sacrament of Penance - Historical Background. Tape
Lecture, MCL 703. Notre Dame, Indiana: The Ave Maria Press, 1970.

White, Robert J., J. CD., Confession and the Law. Washington, D.C: The
Catholic University of America Press, 1938.

Rosenthal, A.M. "Save the First Amendment", New York Times Magazine, February
11, 1973.

New York Times, December 18, 1972; March 20, 1973; February 14, 1973;

THOMAS J. CONFROY
Chaplain (MAJOR) USA
5-16-C22 73-1
(15 May 1973)